Courts

In his column yesterday, E.J. Dionne laid out exactly the right prescription for liberals and Democrats in the upcoming confirmation battle over the Supreme Court seat being vacated by Justice John Paul Stevens.

We don't know who the nominee is yet, but we know the dangers posed by the Roberts Court and what the right-wing ideologues are doing to our country via their agenda-driven interpretations and reinterpretations of the law and the Constitution.

Citizens United is an extreme case of a general tendency: Conservative judges are regularly invoking their alleged fealty to the "original" intentions of the Founders as a battering ram against attempts to limit the power of large corporations. Such entities were not even in the imaginations of those who wrote the Constitution. To claim to know what the Founders would have made of Exxon Mobil or Goldman Sachs or PepsiCo is an exercise in arrogance.

What liberals forgot during the years when their side dominated the judiciary is that for much of our history, the courts have played a conservative role. But today's conservatives have not forgotten this legacy. Their goal is to overturn the last 70 years of judicial understandings and bring us back to a time when courts voided minimum-wage laws and all manner of other economic regulations.

Several days earlier, Joe Conason wrote a great piece discussing the politics of Supreme Court confirmation battles and why Democrats and progressives should be eager to have a constitutional debate about the role of the Court and how the Right's definition of "constitutional" really means the dangerous upending of the traditional understanding of the Constitution which has served America well.

Conason writes:

What exactly do they mean by "constitutional"? On the increasingly powerful fringes of the Republican right, a category that includes some Tea Party activists, the Constitution is interpreted as prohibiting every social and political advance since before the Civil War. They would outlaw the Federal Reserve System, the progressive income tax, Social Security, Medicare, environmental protection, consumer regulation and every other important federal initiative of the past century.

Targets of the "constitutional conservatives" would certainly include civil rights legislation that guarantees equal protection under law to minorities and women...

Some more evidence of the Senate GOP’s extraordinary efforts on behalf of getting nothing done: trying to put off a vote on Wall Street reform, Senate Republicans are filibustering the motion to proceed to the legislation, adding yet another layer of delay to stall the bill.

The motion to proceed has traditionally been a quick formality, dispatched by unanimous consent in order to start debate on a bill. But recently, Republicans have been embracing it as yet another opportunity to slow down Senate proceedings. NPR reports:

It used to be relatively rare that so-called "motions to proceed," or to bring up a bill, were filibustered.

Before Democrats became the majority in 2007, such filibusters occurred only about eight times a year. Since then, the Republican minority has nearly quadrupled the frequency of such filibusters.

This dilatory tactic is just one of many ways that the GOP has found to impose unprecedenteddelays on Senate business both controversial and mundane. At least they haven’t yet skipped out of work altogether. Oh, wait.

Yesterday’s confirmation of Chris Schroeder to head the Office of Legal Policy was a welcome break in the gridlock that GOP senators have created over President Obama’s Executive Branch nominees. (Though, as has become the pattern, they made sure Schroeder’s confirmation was held up for nearly a year before allowing it to easily pass in a 72-24 vote).

The GOP’s recent unprecedentedabuse of procedural stalling tactics has Senators and observers scrambling for ways to amend filibuster rules to get the Senate working again.

In the Washington Post this morning, Ruth Marcus details her ideas on reforming the filibuster while maintaining the power of the minority to have a strong voice in the Senate, and Ezra Klein outlines the enormous time-wasting potential of the current rules.

And Chuck Schumer, chairman of the Senate Rules Committee, has launched a (sure to be smash hit) series of hearings on filibuster reform. At this morning’s hearing, there was some especially interesting testimony from the Brookings Institution’s Sarah Binder, who debunked the widely held idea that the Founding Fathers meant the Senate to be deliberative to the point of inaction.

The filibuster clearly has worthy uses (as anyone who’s seen Mr. Smith Goes to Washington knows), but it’s clearly wrong to imply that the Senate’s inventors intended the sort of obstruction that we see today.

Stanley Bach, a former legislative specialist at the Congressional Research Service who testified at this morning’s hearing, put it this way: “A useful starting point [to discussions of reform] is to ask whether the usual purpose of filibusters is more balanced legislation or no legislation at all.”

John Perr wrote what I consider a must-read post over at Crooks and Liars about how Republicans, when in power, fail miserably at governing and seem to do their best art destroying our country. The results of their policies -- economic or otherwise -- inevitably force them out of office, but last long enough that they are able to pin the woes on their democratic successors and make "Government" the scapegoat for all the nation's problems, with particular anger being directed at the then-incumbents: Democrats.

That Americans' trust in government has plummeted to near-record lows isn't a surprise. After all, as the Pew Research Center documented, distrust of Washington is an American tradition, one which tends to rise and fall inversely with the economy. But the spike in anger towards the federal government, a fury which doubled to 21% since 2000, points to a potential midterm bonanza for the GOP. All of which suggests that the Republican Party whose anti-government rhetoric and incompetence in office helped kill trust in government may now be rewarded for it.

By now, the Republican recipe for badmouthing government into power should be all too familiar. First is to endlessly insist that, as Ronald Reagan famously said, "Government is the problem." Second is the self-fulfilling prophecy of bad government under Republican leadership, as the Bush recessions of 1991 and 2007, the Hurricane Katrina response, the Iraq catastrophe and the transfer of federal oversight powers to the industries being regulated all showed. Third, when the backlash from the American people inevitably comes as it did in 1992 and 2008, attack the very legitimacy of the new Democratic president they elected. Fourth, turn to the filibuster and other obstructionist tactics to block the Democratic agenda, inaction for which the incumbent majoirty will be blamed. Last, target the institutions and programs (Social Security, Medicare, the IRS) which form the underpinnings of progressive government.

Justin Fox, on his Harvard Business Review blog, has an interesting take on the Supreme Court’s decision in Citizens United v. FEC. He interviews Brian Murphy, a history professor at Baruch College who studies the economics and politics of early America. The original laws of incorporation, Murphy says, were developed to organize civic organizations and municipal governments, and later were applied to economic enterprises, partly as a way to dilute their growing influence. “The intent of these laws is therefore the opposite of what the Court asserted in Citizens United,” he says.

Let me put it this way: the Founders did not confuse Boston's Sons of Liberty with the British East India Company. They could distinguish among different varieties of association — and they understood that corporate personhood was a legal fiction that was limited to a courtroom. It wasn't literal. Corporations could not vote or hold office. They held property, and to enable a shifting group of shareholders to hold that property over time and to sue and be sued in court, they were granted this fictive personhood in a limited legal context.

Early Americans had a far more comprehensive and nuanced understanding of corporations than the Court gives them credit for. They were much more comfortable with retaining pre-Revolutionary city or school charters than with creating new corporations that would concentrate economic and political power in potentially unaccountable institutions. When you read Madison in particular, you see that he wasn't blindly hostile to banks during his fight with Alexander Hamilton over the Bank of the United States. Instead, he's worried about the unchecked power of accumulations of capital that come with creating a class of bankers.

The view of corporations as “persons” was meant for legal convenience and economic risk reduction, Murphy argues, and it was the courts, not lawmakers, who started blurring the distinction between the rights of individuals and corporations.

Given the public’s overwhelmingly negative reaction to Citizens United, it seems that Americans continue to understand the difference between corporations and individuals, their purpose in society, and their rights. Americans haven’t grown out of touch with the fundamental values of the Constitution—the Court has.

The threat of filibuster is holding up Senate business more than ever before, and Senators are at odds over whether to do away with or amend the rule that’s causing so much trouble.

People for Executive Vice President Marge Baker joined a panel yesterday at American University’s Washington College of Law to discuss what can be done to loosen up the gridlock in the deliberative body.

Baker, Washington Post columnist Ruth Marcus and Cato Institute scholar John Samples discussed several proposals that have been put forward to fix the filibuster problem, from limiting lawmakers to a “one bite” rule that would not permit filibusters of both motions to proceed to a bill as well as on the merits of the bill itself to reducing the number of votes needed to invoke cloture to scuttling the rule altogether. But they kept coming back to one point: what’s causing the gridlock isn’t the filibuster rule itself but its increasing use as an obstructionist tactic.

“The problem is not its existence; the problem is its overuse,” Marcus said.

“It really is a problem. It really is causing government to break down,” Baker said, “The cloture vote is being used to an unprecedented degree, and the degree to which it’s being used primarily for obstruction, is really a serious problem.”

Here’s a look at the rate of cloture filings in the past 90 years:

And a look at filibuster threats to executive nominees from 1949 through March of 2010:

Senators Jeanne Shaheen and Tom Harkin have introduced a measure to phase out the filibuster in a series of steps, eventually ending in a Senate where votes can pass with a simple majority. Senator Tom Udall has proposed letting the Senate adopt new rules--and make a choice about the filibuster--at the start of every new Congress. But the solution may lie not in taking away the power of the minority to have some leverage in matters that are truly important (nobody likes that idea when they’re in the minority), but in limiting the situations where the filibuster can be used. Marcus suggested taking the option off the table for executive nominations, limiting its use in judicial nominations, and limiting the minority to one filibuster per law. Baker suggested changing the rule that provides for 30 hours of post-cloture debate before a matter can be voted on, which would save enormous time, particularly where the result is a foregone conclusion.

Though, whatever the form that filibuster rules take, I’m pretty sure we can count on the GOP to come up with creative ways to keep on stalling business.

Baker, Samples, Marcus, and moderator William Yeomans at American University's Washington College of Law

President Obama was elected on a promise of change, but in order for any of his legislative accomplishments to remain in place, they will need to survive court challenges.

Health care reform has passed. Major financial regulatory reform could be on the horizon. But these reforms will live or die in the federal courts. We immediately saw litigation from right-wing state attorneys general challenging the constitutionality of the health care bill. Will the fate of that bill and others be decided by George W. Bush-appointed judges? That looks increasingly likely if many of the lower federal court vacancies are not filled in a timely manner. Republican obstruction and threats of filibuster cannot be allowed to deter or delay the confirmation of much-needed judicial nominees.

Barry Friedman has an op-ed in today’s Politico that hammers home this point while providing some relevant examples:

Administrations frequently find their regulatory plans in judicial trouble. The Supreme Court gutted the Carter administration's plans to regulate toxic benzene in the workplace. When the Bush administration's Environmental Protection Agency refused to regulate greenhouse gases, claiming a lack of statutory authority, the justices disagreed. The Reagan administration suffered defeat on air bags, the Clinton administration on tobacco regulation.

Just last week, the D.C. Circuit Court ruled the Federal Communications Commission does not have the authority to require broadband providers to treat all customers equally regardless of the type of lawful content they're sending and receiving -- called "net neutrality."

The first day back from spring recess and Republican senators were at it right off the bat, continuing their unprecedented obstruction and trying to filibuster the extension of unemployment benefits for over a quarter of a million out of work Americans. To his credit, Senator Reid almost immediately called for a cloture vote and a united Democratic caucus along with a handful of Northeastern Republicans provided the needed 60 votes to proceed with debate on the bill (which will allow for the bill's passage).

Newt Gingrich, it seems, has learned a new word. The title of his talk tonight at the Southern Republican Leadership Conference is “Becoming the Party of Yes.”

The party of “yes”?

It’s a worthy goal, but the GOP has a long way to go to get there. Last year, Republican Senators went to unprecedented lengths to slow down legislation, even targeting bills that many in their own party ended up voting for. They’ve blocked Executive Branch nominees at a rate never before seen. They even forced a time consuming cloture vote on judicial nominee Barbara Keenan even though not a single Republican was willing to oppose her on her merits. And, for a while, GOP Senators decided that it was in the best interest of the country if they didn’t show up to work after lunch.

In the weeks since the Supreme Court handed down its decision in Citizens United, plenty of people (including, ahem, us) have spoke out against the decision. But one critic of the ruling brings a particularly distinguished resume.

Sandra Day O’Connor, in addition to being a former Associate Justice on the Supreme Court, has emerged as one of the most vocal and persistent critics of the ruling and of the dangerous effects of unlimited money in politics. Despite her conservative credentials, though, her stance shouldn’t come as much of a surprise. After all, she wrote one of the decisions that Chief Justice Roberts and co. so casually tossed aside.

In speeches and interviews since the 5-to-4 decision came down on Jan. 21, O'Connor has highlighted the decision's impact on precisely the political arena where its corrupting influence and corrosive effects on public trust could be deepest: the races judges themselves must run to keep their seats on state courts.

O'Connor's barnstorm tour deploring the ruling and defending judicial independence continued last week with an audience of law students, faculty, and judges in her home state of Arizona. Earlier, at Georgetown University Law Center in Washington, she chastised the court majority for signaling "that the problem of campaign contributions in judicial elections might get considerably worse and quite soon."

A few minutes ago, the House of Representatives passed landmark health reform, perhaps the most important piece of domestic policy legislation in a generation.

The feat is all the more impressive given the scorchedearth tactics the Right Wing has used to try to derail it. Even yesterday, Democratic Congressmen faced racist and homophobic slurs for supporting the legislation, and this evening Congressman Bart Stupak (no friend to a woman's constitutional right to reproductive choice) was called a "baby killer" by a Republican Representative for supporting the bill.

But in the end, health care reform passed: a major accomplishment for Congress and an important plank of President Obama's platform realized.

The moral: standing up for your agenda pays off. The GOP made clear that there was virtually nothing they wouldn't do to stop reform, but by powering through Republican obstruction, Democrats were able to score a major win for themselves and for the American people.

Today, Maryland’s highest court, the Court of Appeals, will hear oral argument in the case of Mary Linklater v. Prince of Peace Lutheran Church. Its decision will address the application of the “ministerial exception” – a judicially recognized legal doctrine that has been misused by courts to improperly shield religious employers from unlawful employment practices. The exception says that ministers and other clergy members should be able to make hiring decisions based on religious criteria. But too often the law is used to shield some clergy members from laws that should obviously apply to all—like laws preventing sexual harassment in the workplace.

Mary Linklater was in just such a situation, and she sued. A jury ruled in favor of Linklater and awarded her over a million dollars in damages after she proved that she was unlawfully terminated by the church as its music director after complaining about the pastor’s repeated sexual harassment of her.

People For Foundation filed an amicus brief in the case arguing that the exception was never intended to relieve religious employers of their obligation to comply with neutral laws of general applicability. A copy of our brief can be viewed here.

If anyone had any doubt that the courts matter, check out this article in today’s Hill about Republicans and allied groups vowing to spend millions on legal challenges to healthcare reform and other parts of the Obama agenda.

Health care, global warming, financial reform, workers rights--you name it. The courts make a huge difference in the lives of all Americans. Who sits on those courts--and how fully they embrace our core constitutional values--is critical.

That’s why there’s so much urgency about breaking the current nominations impasse created by Republicans’ unprecedented obstruction. And that’s why we need a bold choice to fill any new vacancy on the Court--someone who understands the constitution mandates attention to the interests of all, not just a privileged few.

Senate Judiciary Chairman Patrick Leahy lashed out today at the unprecedented obstruction of judicial and executive branch nominees by the Republican majority. There are currently 12 judicial and 15 executive branch nominees on the Senate Calendar that the Republicans are stalling. Some, like Dawn Johnsen, as Senator Leahy notes, have been awaiting action for more than nine months. The last judicial nominee, whom Republicans delayed for six weeks, was confirmed unanimously by a vote of 97 to zero. Since that vote on December 1st, not a single judicial nominee has been considered by the full Senate. There are now more judicial nominees pending on the Senate calendar than have been confirmed all year.

The Republican agenda of delay and obstruction is clear. The price to the American people is also clear. With the range of critical issues before this Administration, the President needs his team at the Justice Department in place. And, with the 97 current and 23 announced judicial vacancies reaching record proportions, the threats to the administration of justice are serious. As Senator Leahy said, “Justice should not be delayed or denied to any American because of overburdened courts and the lack of Federal judges.”

You can read Senator Leahy’s full statement here. And click here to read PFAW’s recent report on the obstruction of executive branch nominees.

This week, there was a new development in a California case where a federal judge on the U.S. Court of Appeals for the Ninth Circuit in February ruled the Defense of Marriage Act unconstitutional. The Los Angeles Times reports the new development:

In a legal end-run around the 1996 Defense of Marriage Act, a federal judge Wednesday ordered compensation for [Brad Levenson,] a Los Angeles man denied federal employee benefits for his spouse because they are both men. ...

[In February, U.S. 9th Circuit Court of Appeals Judge Stephen] Reinhardt, who is responsible for resolving employee disputes for public defenders within the 9th Circuit, had ordered the Administrative Office of the U.S. Courts to process Levenson's application for spousal benefits. But the federal Office of Personnel Management stepped in to derail the enrollment, citing the Defense of Marriage Act, which prohibits federal government recognition of same-sex marriage.

Levenson appealed, seeking either an independently contracted benefits package for Sears or compensation for the costs they incurred in the absence of coverage. Reinhardt ordered the latter, based on a back pay provision in the law governing federal defenders' employment.

As reported on this blog back in February, this case is less than it might seem at first blush. DOMA remains the law of the land. Rather than being a traditional court case, this is an internal employee grievance procedure within the office of federal public defenders of the Ninth Circuit. As a result, the judge is not acting in his capacity as a judge. Instead, he is acting in his capacity as the designated administrative decision-maker for the Ninth Circuit's Standing Committee on Federal Public Defenders.

Since it's not a traditional court case, it imposes no binding precedent and is not going to be appealed to the Supreme Court.

Nevertheless, the new order does add an important new element to the conversation over DOMA's constitutionality. And coming from a federal circuit court judge, its reasoning has resonance, even if it is not binding precedent.

In the new order, Judge Reinhardt repeats his February analysis of DOMA's constitutional infirmities, rejecting various arguments in its favor. He also addresses a new argument and determines that it, too, fails under the rational basis level of scrutiny, the easiest of standards to meet:

Recently, the government has advanced an additional argument in defense of DOMA: that the statute serves a legitimate governmental interest in maintaining a consistent definition of marriage at the federal level for purposes of distributing federal benefits while individual states consider how to resolve the issue of marriage equality for same-sex couples. ... Even under the more deferential rational basis review, however, this argument fails. DOMA did not preserve the status quo vis-à-vis the relationship between federal and state definitions of marriage; to the contrary, it disrupted the long-standing practice of the federal government deferring to each state's decisions as to the requirements for a valid marriage. ...

Congress thus sided with those states that would limit marriage to opposite-sex couples, and against those states that would recognize the marriages of same-sex couples. Taking that position did not further any government interest in neutrality, if indeed such an interest exists.

And just where did this additional argument come from? From Barack Obama's very own Justice Department.

Question: Can a police officer pull a driver over on suspicion of drunk driving based only on an anonymous tip? Based on the quotations below, can you guess what governmental body was asked this week to answer that question?

Every year, close to 13,000 people die in alcohol-related car crashes - roughly one death every 40 minutes. ... Ordinary citizens are well aware of the dangers posed by drunk driving, and they frequently report such conduct to the police. A number of States have adopted programs specifically designed to encourage such tips ...

[Another lawmaking body] adopted a rule that will undermine such efforts to get drunk drivers off the road. [It] commands that police officers following a driver reported to be drunk do nothing until they see the driver actually do something unsafe on the road - by which time it may be too late.

There is no question that drunk driving is a serious and potentially deadly crime ... The imminence of the danger posed by drunk drivers exceeds that at issue in other [situations]. In a case [with an anonymous tip that someone at a bus stop is carrying a gun], the police can often observe the subject of a tip and step in before actual harm occurs; with drunk driving, such a wait-and-see approach may prove fatal. Drunk driving is always dangerous, as it is occurring. ...

The conflict is clear and the stakes are high. The effect of [needing more than an anonymous tip to permit the police to stop a driver] will be to grant drunk drivers "one free swerve" before they can legally be pulled over by police. It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check.

Is this a legislator urging his colleagues how to vote on an important policy question?

On Tuesday, the Supreme Court denied a petition for certiorari in Virginia v. Harris, declining to hear the appeal of a drunk driving case involving a police stop based only on an anonymous tip. Roberts, joined by Justice Scalia, issued a stinging dissent from that decision not to hear the case. Their dissent was brimming with ... policy considerations.

This blog has writtenbefore on the pernicious myth that judges shouldn't affect policy, pointing out that that's exactly what courts are supposed to do. It's inherent in interpreting the law in difficult cases. Yet part of the Far Right's propaganda to demonize liberal judges and portray them as anti-American is the line that they "legislate from the bench," usurping policymaking powers from the people's elected representatives.

No one should be fooled into buying the Right's framing. Progressives shouldn't be bullied into parroting it. And the press needs to start asking why the Right always remains silent when conservative jurists engage in this perfectly normal, long-accepted practice.

Yesterday, the Supreme Court decided to hear the case of 13 Uighur detainees held at Guantanamo Bay who are no longer classified as enemy combatants and have been determined to be no threat to the national security of the United States. These detainees - who were captured in Afghanistan and Pakistan and have been held by the U.S. since 2001 - were cleared for release by the Pentagon in 2003, but six years later, they have yet to be set free.

After the Supreme Court ruled in Boumediene last year that Guantanamo detainees have the right to bring habeas corpus claims in federal court to challenge the legality of their detentions, a federal judge in DC ordered that the Uighur detainees be immediately released into the United States since they cannot return to their own country. As members of a Turkic Muslim minority from the Xinjiang Autonomous Region of China, their release back into their own country would likely result in torture and execution.

In February 2009, a 3-judge panel of the DC Circuit Court of Appeals overturned that order, finding that the federal courts lack the authority to order their release into the U.S. Describing it as an immigration decision, the panel concluded that only the executive branch has such authority and even suggested that the detainees apply for entry into the United States through the Department of Homeland Security pursuant to our immigration laws. In petitioning the Supreme Court for certiorari review, the Uighur detainees argued that stripping the power from the federal courts to order their release into the United States rendered the habeas right recognized by Boumediene meaningless. And indeed, they continue to be held behind chained fences guarded by military men.

Disappointingly, Obama's Solicitor General Elena Kagan urged the Supreme Court not to hear the case, arguing that they have no right to enter the United States. Kagan wrote that "they are free to leave Guantanamo Bay to go to any country that is willing to accept them," but acknowledged that the detainees "understandably do not wish to [return to their home country]." Kagan's brief even attempted to portray the conditions of the Uighurs' imprisonment as not so bad.

In contrast to individuals currently detained as enemies under the laws of war, petitioners are being housed under relatively unrestrictive conditions, given the status of Guantanamo Bay as a United States military base…[They are] in special communal housing with access to all areas of their camp, including an outdoor recreation space and picnic area. . . [They] sleep in an air-conditioned bunk house and have the use of an activity room equipped with various recreational items, including a television with VCR and DVD players, a stereo system, and sports equipment.

Sounds just as good as freedom, doesn't it?

But what if there is no country willing to accept them? That is the case for at least one of the Uighur detainees who has serious mental treatment needs. In that scenario and under these set of circumstances - where they have been found to be no threat to the United States - shouldn't the U.S. take it as a moral imperative to immediately release these people even if they must be released into our borders? Particularly since the media coverage of their wrongful detentions at Guantanamo Bay by the United States is what highlighted the bull's eyes on their backs for the Chinese executioners in the first place?

Let's not be distracted by side arguments by the DC Circuit or our new SG. First, this is not an immigration matter subject to the jurisdiction of the Department of Homeland Security or Congress. These people had no intention or desire to migrate to the United States. They were involuntarily and wrongfully imprisoned by the United States for over eight years. Second, they are not free in any way and are in every sense of the word imprisoned. If relocation to another country is not available, the United States has a moral duty to immediately release these people into the U.S. subject to any parole conditions that may be appropriate. And if the judiciary is the only branch of our government that has the moral compass to do what is right, they should be vested with the power to do so. That is the root of habeas corpus relief which was designed to remedy unlawful government detention. That is why we have our constitutional system of checks and balances.

This week, the Supreme Court heard arguments in Maryland v. Shatzer, a case involving the constitutional right to counsel during police questioning. The questions asked by the Justices – even the most conservative of them – exposed one of the great lies the Far Right tells about our nation’s judiciary: that courts should not make policy.

In 1981, the Court held that once you tell the police that you want your lawyer, the questioning must stop either until your lawyer arrives, or you yourself initiate further communication. This rule protects you from being badgered by the police to change your mind before the lawyer shows up.

In 2003, after Michael Blaine Shatzer asked for a lawyer, the police dropped their investigation and released him from their custody. Three years later, new evidence arose in the case. The rule established in 1981 would suggest that the police were still barred from questioning Shatzer. That was the issue before the Court this week. To help them analyze the case, the Justices asked the sorts of hypothetical questions they often ask. The Washington Postreports:

Justices seemed generally supportive … that police should have been allowed to question Shatzer again, but they had a hard time agreeing on how the rule should be changed.

[Chief Justice] Roberts worried that police could repeatedly question and dismiss a suspect who asks for a lawyer. "You know, just sort of catch-and-release, until he finally breaks down and says, 'All right, I'll talk,' " Roberts said. ...

[T]he justices wondered what could be done about a suspect who asks for a lawyer, never actually receives one or is convicted, and then is questioned years later, perhaps for a different crime.

Justice Samuel A. Alito Jr. posed this hypothetical: What if someone was arrested for joy riding in Maryland, invoked his Fifth Amendment protection, and was never convicted? Could police in Montana question him as a murder suspect in Montana 10 years later?

When [Shatzer’s attorney] said no, Alito replied: "And you don't think that's a ridiculous application of the rule?"

[Then] Alito raised the hypothetical ante to a crime committed 40 years later ...

If the police let a suspect go after he asks for a lawyer, does the Constitution prohibit the police from questioning him again half a century later? Should there be limits? What should they be? How do you decide?

The Justices deciding this case are not simply calling balls and strikes, the insulting umpire analogy that Roberts infamously used during his confirmation hearings. Roberts, Alito, and the other Justices are weighing the consequences of different possible interpretations of the 1981 precedent as they apply it to a new and unforeseen situation.

Just as legislators do, they will be making policy. And that's fine. That's what courts are supposed to do. It's inherent in interpreting the law in difficult cases such as this.

So the next time the Washington Post quotes a right wing propagandist condemning progressive judges for making policy or "legislating from the bench," perhaps the Post will do more than collaborate by simply reprinting the accusation. Perhaps the Post will cite its own reporting and point out that all judges weigh policies and make law, but that the Far Right is silent when conservative judges do it.

As discussed in a number of previous posts, the Roberts Court has demonstrated its conservative ideological bent, striking down laws passed by Congress and demonstrating a willingness to ignore long-standing precedent. It reached out last term in the Gross age discrimination case to decide an issue that hadn't been briefed and changed the law in a way that will make it much harder for older workers to prove that they were discriminated against in the workplace. In the Ricci fire fighters case, the Court reached out to decide the case on the merits - even though no employee had actually been injured -- so that it could reach the merits and change the law with respect to proving discrimination in so-called disparate impact cases. And, in the recently argued Citizens United case, the Court re-opened the briefing in the case to re-visit what had been a settled question about whether regulating corporate expenditures in candidate elections is constitutional.

Will this trend continue? And what does this mean for President Obama's initiatives on health insurance reform? Climate change? Financial regulatory reform? Asnoted in Adam Liptak's article in yesterday's New York Times, the Court's docket this term includes a number of cases likely to signal its future willingness to support government intervention to address structural problems in our economy. In Free Enterprise Fund v. Public Company Accounting Oversight Board, a case growing out of the Enron debacle, the Court will consider the scope of Congress' power to delegate regulatory responsibility to independent regulatory boards. The issue in Jones v. Harris Associates, concerns the role of courts in regulating executive compensation for mutual fund investment advisers. And in Milavetz, Gallop & Milavetz v. United States, the issue concerns the scope of a federal law concerning lawyers' advice to clients considering bankruptcy. Dry? Perhaps. But what we learn in these cases, may well signal how far the Court is willing to go in supporting or, perhaps more likely, frustrating, efforts by the Administration and Congress to address serious structural problems in our economy.

For some people in Guantanamo Bay who are found not guilty in a court of law for whatever they are eventually put on trial for, the Obama Administration is floating the idea of keeping them in "indefinite detention" anyway. According to the Washington Post:

Guantanamo Bay detainees who are acquitted by civil or military courts may still be imprisoned indefinitely if the government determines that they pose a national security threat, the Defense Department's chief lawyer said yesterday. "The question of what happens if there's an acquittal is an interesting question -- we talk about that often within the administration," Pentagon general counsel Jeh Johnson said at a Senate hearing. "If, for some reason, he's not convicted for a lengthy prison sentence, then, as a matter of legal authority, I think it's our view that we would have the ability to detain that person," he said.

Reading this sends a chill down my spine. We are a country governed by law, and we cherish our liberty. The United States Constitution establishes a number of safeguards to limit the government's ability to use its awesome power to simply lock people away. That's why we have trials. That's why we have juries. That's why we prevent the police from beating confessions out of people. That's why we give defendants the right to cross-examine those testifying against them. And when the government loses at trial and a person is found not guilty, our liberty is further protected by the Constitution's prohibition of double jeopardy.

Our nation's founders knew that the system wouldn't be perfect, but they recognized that protecting the rights of all people - even bad people - is what liberty is all about.

An LA Times editorial put it simply two years ago, when President Bush proposed the same idea as the one currently being discussed: "[A]n acquittal must mean more than a return trip to a prison cell."

Just because it would be Barack Obama and not George Bush holding the prison door key does not make this any less of a threat to America's constitutional principles.